EXHIBIT 10.2A
SEVERANCE AND RELEASE AGREEMENT
This Severance and Release Agreement (this "Agreement") is entered into by
and between XXXXXXX X. XXXXXXXXXX ("Xxxxxxxxxx") and i3 MOBILE, INC., a Delaware
corporation, on behalf of itself and all of its subsidiaries, divisions,
affiliates, successors and assigns (hereinafter collectively referred to as the
"Company").
RECITALS
WHEREAS, Neuscheler and the Company wish to set forth the terms and
conditions of the termination of his employment with the Company.
NOW, THEREFORE, in consideration of the promises, releases, covenants and
agreements contained herein and for other good and valuable consideration, the
receipt and sufficiency of which is hereby acknowledged by the parties hereto,
it is hereby agreed as follows:
1. The parties acknowledge that Neuscheler's employment with the Company
terminated effective December 7, 2001 (the "Termination Date"). Neuscheler shall
not represent or hold himself out as an officer or employee of the Company.
2. (a) Neuscheler acknowledges (i) that he has been paid his base salary
(less standard withholdings and deductions) through the Termination Date, and
(ii) that he has received compensation for all of his accrued and unused
vacation days through December 31, 2001.
(b) The Company shall pay to Neuscheler as full and complete severance and
satisfaction of any obligations owed to him by the Company (i) $230,842,
less applicable withholding (as required by law) for income and other
taxes, in two installments of $115,421 each on each of February 7 and March
7, 2002, and (ii) on December 7, 2002, (subject to compliance with Section
7 hereof) a lump sum payment of $19,500 less applicable withholding (as
required by law) for income and other taxes (the "Severance Payment").
(c) From and after the Effective Date, the Company will continue to provide to
Neuscheler, until the earlier of June 7, 2003 or such date as he obtains
alternative coverage, his current medical, disability and life insurance
benefit coverage on the same terms as currently provided, at no cost to him
(subject to any adjustment, alteration in coverage or other change
generally applicable to employees of the Company under the applicable
plan). After June 7, 2003, Neuscheler will be
permitted to continue, at his own expense, any group health insurance
coverage for a limited period of time in accordance with COBRA.
(d) In addition to the Severance Payment, Neuscheler shall receive, upon the
eighth (8th) day following the execution of this agreement, a lump sum
payment equal to thirteen thousand dollars ($13,000.00), less applicable
withholding (as required by law) for income and other taxes, as his total
bonus for the year ending December 31, 2001.
Neuscheler shall not be entitled to any other bonus amounts or other
severance except as provided above.
(e) Upon the eighth (8th) day following the execution of this agreement, the
Company will pay Neuscheler for all reimbursable expenses incurred through
the Termination Date ($0), and by February 15, 2002 the Company shall
reimburse Neuscheler for up to $1,000.00 of additional reimbursable
expenses incurred prior to the Termination Date; provided, that Neuscheler
provides the Company with receipts for each such additional expense prior
to February 10, 2002.
(f) Except as provided in paragraphs 2 (b) through 2 (e), Neuscheler shall not
be entitled to any other or further compensation, remuneration,
reimbursement, benefits or other payments from the Company; provided,
however, that nothing in this Agreement shall divest or otherwise affect
any entitlement to any pension or retirement benefit which already may have
vested.
(g) Neuscheler shall be entitled to retain possession of his laptop computer.
Neuscheler and the Company acknowledge that Neuscheler has returned two (2)
cellular telephones to the Company.
(h) Neuscheler and the Company acknowledge that (i) as of the Termination Date,
95,833 of Neuscheler's options to purchase the Company's common stock have
vested, and such options are exercisable at $7.92 per share at any time
prior to March 7, 2002; and (ii) all of Neuscheler's unvested options are
terminated as of the Termination Date.
(i) Except as set forth above, Neuscheler agrees to return to the Company any
and all property of the Company, including any files and any documents
prepared for or by the Company.
(j) Until June 7, 2002, the Company will maintain Neuscheler's email address
and voicemail service and will provide Neuscheler with out placement
secretarial support until such time that Neuscheler establishes another
office.
3. As a material inducement to the Company to enter into this Agreement and
for other good and valuable consideration, the receipt of which is hereby
acknowledged by Neuscheler, Neuscheler hereby irrevocably, unconditionally and
generally releases the Company and each of the Company's officers, directors,
and employees, and the heirs, executors, administrators, receivers, successors
and assigns of
all of the foregoing (collectively, "Releasee"), from, and hereby waives and/or
settles any and all, actions, causes of action, suits, debts, sums of money,
agreements, promises, damages, or any liability, claims or demands, known or
unknown and of any nature whatsoever (collectively, "Claims") which Neuscheler
ever had, now has or hereafter can, shall or may have, for, upon, or by reason
of any matter, cause or thing whatsoever from the beginning of the world to the
date of this Agreement, arising directly or indirectly pursuant to or out of his
employment with the Company, the performance of services for the Company or any
Releasee or the termination of such employment or services and, specifically,
without limitation, any Claims (a) arising under or pursuant to any contract,
express or implied, written or oral, (b) for wrongful dismissal or termination
of employment or violation of any public policy, (c) arising under any federal,
state, local or other statutes, orders, laws, ordinances, regulations or the
like that relate to the employment relationship and/or that specifically
prohibit discrimination or retaliation based upon age, race, religion, sex,
national origin, disability, sexual orientation or any other unlawful bases,
including, without limitation, the Age Discrimination in Employment Act of 1967,
as amended, the Civil Rights Act of 1991, as amended, the Civil Rights Acts of
1866 and 1871, as amended, Title VII of the Civil Rights Act of 1964, as
amended, the Americans with Disabilities Act of 1990, as amended, the Employee
Retirement Income Security Act, as amended, the Executive Law of the State of
New York, as amended, and any applicable rules and regulations promulgated
pursuant to or concerning any of the foregoing statutes, (d) for tort, tortious
or harassing conduct, infliction of mental distress, interference with contract,
fraud, libel or slander, and (e) for damages, including, without limitation,
punitive or compensatory damages or for attorneys' fees, expenses, costs, wages,
injunctive or equitable relief. This paragraph shall not apply to any claim that
Neuscheler may have for a breach of this Agreement. Nothing herein shall be
deemed to be a waiver or release by Neuscheler of any indemnification rights
which may be available to him under the Company's By-Laws or pursuant to the
Business Corporation Law of the State of Delaware or pursuant to any director
and/or officer insurance coverage maintained by the Company. The Company
likewise releases Neuscheler from any and all claims and causes of action,
demands, obligations, agreements, promises, liabilities and damages of whatever
nature arising out of Neuscheler's employment with the Company, except as
provided in paragraph 7 hereof.
4. Neuscheler represents and warrants that he has not filed, commenced or
participated in any way in any complaints, claims, actions or proceedings of any
kind against any Releasee with any federal, state or local court or any
administrative, regulatory or arbitration agency or body, and he agrees not to
file, assert or commence any complaint, claim, action or proceeding of any kind
against any Releasee with any federal, state or local court or any
administrative, regulatory or arbitration agency or body with respect to any
matter released pursuant to paragraph 3 hereof.
5. Neuscheler acknowledges and agrees that any monetary or other benefits
which are, were or may have been claimed to be due to Neuscheler and which he
may have earned or accrued, or to which he may have been entitled, have been
paid or such payments have been released, waived or settled by Neuscheler
pursuant to this Agreement.
6. By executing this Agreement, Neuscheler acknowledges that (i) he has
been advised by the Company to consult with an attorney before executing this
Agreement, (ii) he has been provided with at least a twenty-one (21) day period
to review and consider whether to sign this Agreement and that by executing and
delivering this Agreement to the Company, he is waiving any remaining portion of
such twenty-one (21) day period, and (iii) he has been advised that he has seven
(7) days following execution to revoke this Agreement (the "Revocation Period").
This Agreement will not be effective or enforceable until the Revocation Period
has expired. Such revocation shall only be effective if an originally executed
written notice thereof is delivered to the Company on or before 5:00 p.m. on the
seventh day after execution of this Agreement. If so revoked, this Agreement
shall be deemed to be void ab initio and of no further force and effect.
7. Neuscheler acknowledges that, notwithstanding the provisions of this
Agreement (and particularly paragraph 3 hereof), he is obligated to comply with
Section 8 (regarding inventions and copyrights), Section 9 (regarding
confidential information) and Section 10 (regarding competition) of the
Employment Agreement dated as of January 10, 2000, by and between the Company
and Neuscheler until June 7, 2003, which provisions shall survive termination of
his employment on the Termination Date, and are incorporated by reference
herein.
8. Neuscheler covenants and agrees that he shall, at all times, cooperate
with and assist the Company in the defense of any and all legal proceedings
arising from facts and circumstances of which he had knowledge while employed by
the Company, and shall cooperate with the Company in the reasonable transition
of his responsibilities, including answering reasonable inquiries in connection
with the Company's audit for December 31, 2001. The Company shall reimburse
Neuscheler for any out-of-pocket expenses incurred by him in connection with
such cooperation and assistance.
9. Neuscheler agrees that neither he, nor anyone acting on his behalf,
shall hereafter (i) make any derogatory, disparaging or critical statement about
the Company or the business of the Company or any of the Company's officers,
directors or employees or any persons who were officers, directors or employees
of the Company or (ii) communicate, directly or indirectly, with the press or
other media concerning the past or present employees or business of the Company.
The Company agrees that neither it, nor anyone acting on the Company's behalf,
shall hereafter make any derogatory, disparaging or critical statement about
Neuscheler.
10. This Agreement (a) constitutes the sole and complete understanding and
agreement between the parties hereto with respect to the matters set forth
herein and there are no other agreements or understandings, whether written or
oral and whether made contemporaneously or otherwise, that are binding upon the
parties hereto, and supersede all negotiations, prior discussions, preliminary
agreements and agreements relating to the subject matter hereof prior to the
date hereof (b) may not be amended unless in a writing signed by the parties
hereto, (c) shall be subject to, governed by and construed and enforced in
accordance with the internal laws of the State of New
York under the rules of the American Arbitration Association and (d) shall inure
to the benefit of and be binding upon the heirs, devisees, legatees, executors,
administrators, successors, assigns, officers, directors, and affiliates of each
of the parties hereto. If not revoked in accordance with paragraph 6, the
covenants, representations and acknowledgments contained herein shall survive
the execution and delivery of this Agreement.
IN WITNESS WHEREOF, the parties hereto have executed this Severance and
Release Agreement on the date set forth opposite their respective signatures.
Dated: 1/31, 02 /s/X. X. Xxxxxxxxxx
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Xxxxxxx X. Xxxxxxxxxx
Dated: _________, ____ i3 Mobile., INC.
` By: /s/ Xxxx X. Lack
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Xxxx X. Lack
President and Chief Executive Officer
